In support cases, one party will sometimes ask the court to treat the other as though they earn an income they are not actually earning — for example, arguing that a spouse who is not working should be treated as earning at least minimum wage. This is called imputing income. What often gets missed is who has to prove what. A recent Superior Court decision is a useful illustration.
The Onus Sits With The Person Asking
If you want income imputed to the other party, you carry the burden. You have to establish, with evidence, that the other person is intentionally under-employed or unemployed. The court looks at factors such as the person’s age, education, experience, skills, and health: see Drygala v. Pauli and Lavie v. Lavie, 2018 ONCA 10, and more recently Kohli v. Thom, 2025 ONCA 200, which confirms that the party seeking imputation must build an evidentiary basis for it.
You Cannot Flip The Burden Onto The Other Side
In the case the court considered, the payor asked to have income imputed to a spouse who was not working, and relied mainly on the fact that the spouse had not produced medical evidence showing an inability to work.
The court held that this reverses the onus. The absence of the other party’s evidence does not do the job for you. It was for the party asking to impute income to put forward evidence — about available work, prevailing wages, the hours the person could work, and the personal factors listed above — and that party had not done so. Pointing to a gap in the other side’s materials is not the same as meeting your own burden.
Why This Matters On An Interim Motion
There is an added layer on interim motions, before trial. The scope of what the court will decide at that stage is limited; it is not the moment for a full inquiry into every factor, which is better left to trial: see Zaharia v. Zaharia, 2025 ONSC 2665. That makes it even harder to succeed on an imputation request that is not supported by real evidence early in the case.
The Practical Takeaway
If you are going to ask a court to treat your former partner as earning more than they are, come with evidence — not just an observation that they have not proven the opposite. And if someone is trying to impute income to you, understand that the burden is on them to establish it; the fact that you have not yet produced a particular document does not automatically hand them the finding they want.
This article is general information about Ontario Family Law procedure and is not legal advice. It does not describe any specific client’s matter. For advice on your own situation, speak with a lawyer or set up a consult with us today.
